Vernon snowboarder's lawsuit goes downhill after signing for season pass

Alex Lewis/For the Star-LedgerDerek Dearnley, of Vernon, lost his lawsuit against Mountain Creek after breaking his back in an accident at the resort in 2009. Dearnley's suit was dismissed after he signed a contract for a new season pass at the resort.

VERNON — Derek Dearnley of Vernon didn’t think he was doing anything wrong when he applied for a season pass at the Mountain Creek ski resort in December 2009.

Dearnley, an avid snowboarder, had been enjoying the Vernon resort’s slopes for more than 10 years and was looking forward to another winter of good times just five minutes from his home.

What he didn’t realize was that he was forfeiting the lawsuit he had filed against Mountain Creek just two months earlier.

Dearnley, who says he broke his back in a snowboarding accident at Mountain Creek on Jan. 4, 2009, agreed to release "any and all claims and rights against Mountain Creek Resort, Inc." when he signed the contract for the season pass.

The resort’s lawyers used his signature on the agreement to get his personal injury lawsuit dismissed by a judge in Superior Court in Sussex County.

The appeals court ruled the "releasor’s remorse" expressed by Dearnley was an "insufficient basis" to send the case back to Superior Court for trial.

Yet Dearnley, 52, says he harbors no ill feelings against Mountain Creek — even though the resort also fired his wife, Vicky, in 2010, after she had worked there for 12 years as retail manager at the resort’s store.

Dearnley says the firing had nothing to do with the lawsuit and was made only because the resort changed management.

And with the lawsuit now behind him, Dearnley plans to be back on the slopes at Mountain Creek next winter.

"There’s no reason not to," he said. "This (lawsuit) is over and done."

"I’ve got no love for them (Mountain Creek)" he added, "and my wife has no love for them since she got fired. But it’s the only game in town."

Hidden Valley, also in Vernon, offers snowboarding as well, but it’s "just a tiny little resort" and its slopes don’t compare to Mountain Creek’s, Dearnley says.

Dearnley’s attorney, Evan Baker, called another appeal "unlikely," because it would require "certification" by the state Supreme Court, which would have to agree to hear the case.

Dearnley, who formerly worked as an air conditioning mechanic, said that even if he wanted to appeal the case again, he couldn’t afford the legal fees. He lost his job when his former employer "ran out of work" and his wife has been unemployed since Mountain Creek let her go.

Baker said Dearnley would have had a good chance to win the personal injury suit on its merits had he not signed the season pass agreement.

Attorney Samuel McNulty, who represented Mountain Creek in the case, said he "thought it was going to be a significant damage case when we got the initial medical report."

But later, when he realized Dearnley had applied for another season pass and signed the waiver, "we appreciated immediately" that the suit could be quickly thrown out, McNulty said.

If Dearnley hadn’t applied for the season pass again, the suit would still have lost, but it would have taken much longer to get it dismissed, according to McNulty.

The state’s skiing statute recognizes "there are inherent dangers when you’re on a hill moving with some speed on a snowboard" and "the operation of the ski area that day did not violate the statute in any way," McNulty said.

Dearnley admits that signing the agreement while the lawsuit was pending "wasn’t the smartest thing I ever did.

"I didn’t read it," he admitted. "It was my own dumb fault."

But Dearnley appears to have fared better with his recovery from the accident that he did with the lawsuit.

Dearnley, who used to go snowboarding at Mountain Creek with a friend every Sunday morning, recalls that on Jan. 4, 2009, it was 20 degrees outside and the slopes were "rock-hard."

It was early in the season, and as he headed down a slope, "They were blowing snow 40 feet away. There was a new jump and I couldn’t see it.

"I hit the jump and I came down on my derriere," he said. "It was like falling on concrete."

Dearnley had surgery and was "in and out of hospitals" and a rehabilitation center for two months after the accident.

But when winter came around again the next year, he was ready to hit the slopes.

"I couldn’t wait to get back up," he says. "The fact that I was walking was a miracle."

There is "a lesson to be drawn" from Dearnley’s experience, says David Cronheim, a Bridgewater attorney who specializes in recreational facility law for the golf and ski industries.

"Don’t sign just anything that’s put in front of you," Cronheim said.

"You better read the agreement. Most people don’t read contracts," noted Cronheim, who writes a blog about ski law titled Ski, Esq. and is chief legal correspondent for the First Tracks Online ski magazine.

The court’s decision in the Dearnley case "could have two far-reaching impacts," Cronheim said.

Also, he pointed out, "Skiers and snowboarders should be conscious that if they have sued or intend to sue a ski resort for any reason, that in signing a season pass agreement they may unwittingly waive any claims they might have had."

Or, as Dearnley puts it, "If I didn’t have bad luck, I would have no luck at all."